October 2021 – Exclusions
Exclusion rates for children with SEND continue to rise. In this series, we look at the key legal points surrounding exclusions.
The permanent exclusion rate for SEN pupils with an EHC plan is 0.15%, and for those pupils with SEN but no EHC plan (SEN support) it is 0.32%.
This compares to 0.06% for those without SEN.
On what grounds can a school exclude?
A pupil must only be excluded on disciplinary grounds. The decision to exclude must be:
The behaviour of pupils outside school can be considered as grounds for exclusion.
A decision to exclude a pupil permanently should only be taken:
- In response to a serious breach or persistent breaches of the school’s behaviour policy; AND
- Where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.
Behaviour policies and pupils with SEND
All schools must have a behavioural policy for pupils to follow.
Head teachers should, as far as possible, avoid permanently excluding looked after children or children and young people with EHC plans.
If a child with SEN is showing poor behaviour or is at risk of exclusion, the head teacher must look first at what additional support could reasonably be put in place before excluding.
Schools should engage proactively with parents in supporting the behaviour of pupils with additional needs.
Schools must not discriminate against, harass or victimise pupils because of disability.
Schools must ensure that their policies and practices do not discriminate against pupils by unfairly increasing their risk of exclusion.
Early intervention to address underlying causes of disruptive behaviour should include an assessment of whether appropriate provision is in place to support any SEN or disability that a pupil may have.
The head teacher should also consider the use of a multi-agency assessment for a pupil who demonstrates persistent disruptive behaviour. Such assessments may pick up unidentified SEN but the scope of the assessment could go further, for example, by seeking to identify mental health or family problems.
Reintegrating back into school life
Schools should work with those pupils who may struggle to reengage in school and are at risk of being absent of persistently disruptive, including providing support for overcoming barriers to attendance and behaviour and to help them reintegrate back into school life.
There are two types of lawful exclusion:
- Permanent – when a pupil is removed from school permanently and their name is taken off the school roll.
- Fixed-period exclusions – these are fixed periods of time, such as a number of days or even for part of the school day (e.g. lunchtimes).
Any exclusion of a pupil, even for a short period of time, must be formally recorded.
How long can an exclusion last?
A pupil cannot be excluded for more than 45 school days in one school year. This means they cannot have one fixed-period exclusion of 46 school days or more or lots of shorter fixed-period exclusions that add up to more than 45 school days.
Lunchtime exclusions count as half day exclusions.
Who can exclude?
Only the head teacher of a school (or the teacher in charge of alternative provision college) can exclude a pupil.
What are the legal obligations on a school/head teacher when excluding a pupil?
Parents must be notified without delay, in writing, stating:
- the reason for the exclusion,
- the length of the exclusion,
- arrangements for any alternative provision,
- parents right to respond/appeal and how to do this
What is unlawful?
‘Informal exclusions’ occur when a child is sent home for a short time to ‘cool off’.
These are always unlawful, even if the parents agree.
To be lawful, the exclusion must be formally recorded and be followed by a letter, in writing, to the parents informing them of their rights. Any fixed-period exclusion must have a stated end date.
Are part-time timetables allowed?
As all children over statutory school age are entitled to a full-time education, asking a child to attend for only part of the day, on part-time timetable because ‘they cannot cope’ or there are ‘behavioural issues’ is almost always unlawful.
Part-time timetables may be necessary as a temporary measure in exceptional circumstances to meet a pupil’s needs, but must not be used as a disciplinary sanction or as a long-term solution.
Internal exclusion and isolation
Pupils must not be kept in seclusion or isolation rooms for longer than is necessary, and the pupils’ health, safety and welfare must always come first.
If a child requires a smaller learning environment, it must be with a focus on support, not as a sanction.
What is ‘off-rolling’?
Where schools try to remove pupils with challenging behaviour, or whose poor exam results might damage league table performances.
Off-rolling is never acceptable. Ofsted is clear that pressuring a parent to remove their child from the school (including to home educate their child) is a form of off-rolling. Elective home education should always be a positive choice taken by parents without pressure from their school.
Can the school send my child to be educated elsewhere?
Schools have the power to send a pupil to another education provider/alternative provision at a different location to support and improve a pupil’s behaviour without the parents having to agree.
The placement should be a short term intervention and focus on re-integration.
A school can transfer a pupil to another school IF they have the agreement of everyone involved, including the parents and the admission authority for the new school.
Schools cannot force a parent to remove their child permanently from the school or to keep their child out of school for any period of time without formally excluding. The threat of exclusion must never be used to influence parents to remove their child from the school.
Obligations of parents and carers when a child is excluded
During the first 5 days of a period of exclusion (whether fixed-term or permanent) parents must make sure that their child is not present in a public place during school hours, (unless there is a reasonable justification).
If breached, parents may be fined.
Does the school have to provide education during the first 5 school days of an exclusion?
Where it is not possible, or appropriate, to arrange alternative provision during the first 5 school days of an exclusion, schools should:
- take reasonable steps to set and mark work for pupils
- ensure that work provided is accessible and achievable by pupils outside of school
Exclusion days 6+
Alternative provision must be arranged by the Governing body from the 6th day.
For a looked after child it is the responsibility of the school and the local authority to work together to arrange alternative provision.
Duty to provide alternative education where a child is permanently excluded
For permanent exclusions the local authority (and not the school) must arrange suitable full-time education for the pupil to begin no later than the sixth day of the exclusion.
Full-time means supervised education equivalent to that provided by mainstream schools.
Where a pupil has an EHC plan, the local authority may need to review the plan or reassess the child’s needs, in consultation with parents, with a view to identifying a new placement.
Can I question the decision to exclude my child?
Parents have the right to make their case to the governing board.
For fixed-period exclusions where a child has been excluded for 5 days or less that term the governing board must consider any case made by parents, but it cannot make the school reinstate the pupil and is not required to meet the parents.
Right to make representations. Fixed period exclusions of more than 5 days but less than 15.
For a fixed-period exclusion that brings a pupil’s total excluded days to more than five but under fifteen the governing board must consider reinstatement within 50 school days but only if the parent asks it to do this.
The governing body is not required to meet.
Fixed period exclusions of more than 15 days.
For fixed-period exclusions where the pupil will miss more than fifteen days in one term, or will miss a public examination (e.g. a GCSE) or a national curriculum test the governing board must consider, before the test or in other cases within 15 school days of being told about the exclusion, whether the excluded pupil should be reinstated.
Permanent exclusion. Right of challenge.
The governing board must consider, within 15 school days of being told about the exclusion, whether the excluded pupil should be reinstated.
If the governing board decides not to reinstate the pupil who has been permanently excluded, parents can request an independent review panel to review the governing board’s decision.
The Independent Review Panel (IRP)
The IRP may:
- uphold the governors’ decision,
- recommend that the Governors reconsider their decision,
- may quash the permanent exclusion and direct the governors to reinstate the pupil